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Allahabad High Court · body

2019 DIGILAW 2340 (ALL)

Pramesh Kumar v. State of U. P.

2019-10-16

MANOJ KUMAR GUPTA

body2019
ORDER : Manoj Kumar Gupta, J. Ref:- C.M. Abatement Application No. 329672 of 2013 1. Heard counsel for the parties. 2. Respondents no. 4 and 5 have filed the application stating that petitioner no. 3 had died long back but his heirs and legal representatives having not been brought on record, the instant petition has abated and be dismissed accordingly. 3. Sri H.R. Mishra, learned senior counsel appearing on behalf of the petitioners submitted that petitioner no. 3 (defendant no. 3 in the suit) was impleaded in the suit on the allegation that he was interfering in the management of the temple by plaintiff no. 2, who claimed to be sole Sarvarakar of plaintiff no. 1 (deity). A written statement was filed by defendants no. 1 and 2 and in para 19 thereof, it is stated that a Committee was constituted for managing the affairs of the temple. Defendant no. 3 (petitioner no. 3 herein) was one of the members of the said Committee. It is urged that since the dispute in the suit does not relate to any personal right to property but right of management of the temple, being member of the Committee, therefore, after death of petitioner no. 3, the petition would not abate. 4. Counsel for respondents no. 4 and 5 is not in a position to dispute the said submission. 5. In my opinion, there is considerable force in the submission of learned counsel for the petitioners. Since defendant no. 3 (petitioner no. 3 herein) was impleaded in the suit not in his personal capacity, but on account of the claim of alleged right of management of the trust property, consequently, upon his death, his heirs and legal representatives are not required to be brought on record nor the instant petition would abate as a result thereof. 6. Accordingly, the application is disposed of by providing that the petitioners shall mention the fact about the death of petitioner no. 3 against his name but it shall not be necessary to bring on record his heirs and legal representatives. Order on the Petition 7. Supplementary affidavit filed today is taken on record. 8. Heard Sri H.R. Mishra, learned senior counsel assisted by Sri V.P. Rai for the petitioners and Sri A.K. Srivastava for respondents no. 4 and 5. 9. 3 against his name but it shall not be necessary to bring on record his heirs and legal representatives. Order on the Petition 7. Supplementary affidavit filed today is taken on record. 8. Heard Sri H.R. Mishra, learned senior counsel assisted by Sri V.P. Rai for the petitioners and Sri A.K. Srivastava for respondents no. 4 and 5. 9. The instant petition is directed against the orders dated 11.2.1998 and 15.3.2004 passed by the trial court in Original Suit No. 303 of 1985 and the order dated 7.10.2004 passed by the revisional court. The petitioners are defendants in the suit. The plaintiff-respondents instituted the suit for declaration that plaintiff no. 2 has exclusive right of management of the properties of the Deity, plaintiff no. 1 and the defendants be restrained from interfering in his said right. After service of summons, defendants no. 1 and 2 filed their written statement traversing the plaint allegations. On 11.2.1998, the plaintiff was present, while no one was present on behalf of the defendants. There was also no adjournment application on their behalf, therefore, the court directed for proceeding ex parte against the defendants fixing 23.5.1998 for recording of ex parte evidence. The defendant-petitioners filed an application for recall of the order dated 11.2.1998 on 15.1.2004 alongwith another application seeking condonation of delay in filing the recall application. The explanation furnished by the petitioners for their non-appearance on 11.2.1998 was that petitioner no. 1, at the time of institution of the suit, was a minor and the suit was instituted against him with his mother as guardian. Petitioners no. 1 and 2 became dependent upon petitioner no. 3 (defendant no. 3). Defendant no. 3 got negligent in doing pairvi. Petitioner no. 1 used to come to the court and return back after noting the date, as informed by their counsel. He was not aware of the exact nature of proceeding. Subsequently, the counsel did not pursue the case properly, resulting in passing of the order to proceed ex parte against the petitioner-defendants. Petitioner no. 1 came to know of the instant suit when on 24.6.2003, the respondents tried to plough the fields. He then made enquiry and was apprised of the fact that the instant suit is pending and there is also an order to proceed ex parte. The application was contested by the plaintiffs on the ground that the explanation furnished is apparently false. He then made enquiry and was apprised of the fact that the instant suit is pending and there is also an order to proceed ex parte. The application was contested by the plaintiffs on the ground that the explanation furnished is apparently false. The trial court, after considering the explanation furnished, came to the conclusion that it is not worthy of reliance. It held that there is no satisfactory explanation for not seeking recall during last five years. Accordingly, it rejected the recall application. The petitioners filed a revision, which too has been dismissed endorsing the findings recorded by the trial court. 10. Sri H.R. Mishra, learned senior counsel appearing on behalf of the petitioners submitted with vehemence that the case was posted on 11.2.1998 for framing of issues, therefore, even if the defendants were not present, the court ought to have framed issues. It could not have proceeded ex parte against the defendants. 11. On the other hand, learned counsel for the plaintiff-respondents submitted that the case was posted for disposal of some of the issues but since the defendants were not present, therefore, the court rightly directed the proceedings to be held ex parte against the defendants. 12. The trial court, while considering the recall application, has returned a specific finding that 11.2.1998 was not fixed in the case for framing of issues but for disposal of some of the issues already framed. Learned counsel for the petitioners has not brought on record the order sheet of the case nor any other evidence to show that the finding recorded by the trial court in this regard is erroneous. Even otherwise, this Court is of the opinion that nothing would turn upon whether the issues were framed on 11.2.1998 or not. Since admittedly, 11.2.1998 was not the first date of hearing fixed for appearance but the adjourned date, therefore, the court was empowered to proceed ex parte against the defendants. 13. In Arjun Singh Vs. Mohindra Kumar and others,: AIR 1964 SC 993 , the Supreme Court has held as follows:- "On the terms of O. IX R.7 if the defendant appears on such adjourned date and satisfies the Court by showing good cause for his non-appearance on the previous day or days he might have the earlier proceedings recalled "set the clock back" and have the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalized in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the position that he occupied at the commencement of the trial." 14. The law is thus very clear. Since the defendants were not present despite sufficient service on 11.2.1998, therefore, the trial court was well within its jurisdiction to proceed ex parte against the defendants. Concededly, nothing happened on 11.2.1998 except for recording the fact that the defendants were absent, consequently, as per the law laid down by the Supreme Court in Arjun Singh Vs. Mohindra Kumar (supra), it was still open to the defendants to appear before the trial court on the next date and participate in the remaining proceedings with no adverse consequences to ensue. However, they chose to remain absent and ultimately filed application for recall on 15.1.2004 i.e. almost after six years. Therefore, for setting the clock back to its original position, the petitioners were required to satisfy the court that there was good cause for their non-appearance on 11.2.1998. However, the concurrent findings recorded by the courts below is that the explanation furnished is not satisfactory; they have failed to show good cause for their non-appearance. Counsel for the petitioners is unable to assail the findings recorded in this regard by the courts below. In such view of the matter, this Court finds no illegality in the impugned orders to warrant interference in exercise of supervisory power under Article 227 of the Constitution. 15. The petition lacks merit and is dismissed, however, with the clarification that the petitioners shall be entitled to participate in the proceedings from the stage they filed application for recall of order dated 11.2.1998. The order to proceed ex parte dated 11.2.1998 would not mean that the petitioners are precluded from participating in the remaining proceedings to be held on subsequent dates. 16. Since the suit is of the year 1985, the trial court should endeavour to decide the suit expeditiously, by fixing short dates and without granting unnecessary adjournments to the parties.